Commission must know when to fight and when to retreat

There is clearly an appetite in the higher ranks of the new Commission to shoot down draft legislation.

European Voice

11/20/14, 1:48 AM CET

Updated 1/22/16, 12:33 PM CET

Discretion is the better part of valour, according to the old saying, and Frans Timmermans, who last week signalled his readiness to fight valiantly, this week chose discretion.

He announced yesterday (19 November) that the European Commission would accept the compromise struck between the European Parliament and the EU’s member states on legislation to reduce the use of plastic bags. The Commission had previously indicated that it was minded to withdraw the draft legislation because it was unhappy with the way its proposal had been amended.

This is more than the usual story of an EU institution warning of dire consequences that fail to materialise. Just because the threats have been withdrawn does not mean that they were empty. On the contrary, what is clear is that there is an appetite in the higher ranks of the new Commission to shoot down draft legislation.

Voltaire famously satirised discipline in the British navy by remarking that it was necessary to shoot an admiral occasionally “pour encourager les autres”. In that spirit, Timmermans and Jean-Claude Juncker were more than ready to shoot down the plastic bags law – a revision to the packaging waste directive – to show that they are serious about rolling back some EU legislation that is deemed to be overly interfering, or disproportionately burdensome, or unworkable.

Since Juncker starts off with a deaf ear about environmental legislation, the plastic bags proposal was particularly vulnerable. Where the Commission plan came unstuck was that the national governments and MEPs, after protracted negotiations, struck a deal.

For the Commission to have junked the outcome of that deal – painfully arrived at – would have alienated the other two main institutions of the EU, and that would have been a provocative step to take in only the third week of the Commission’s life.

Discretion demanded a retreat. Valour of another kind will be required in the lifetime of this Commission when it comes to another policy field, copyright, in which there are strong vested interests behind most of the arguments, and existing copyright law is being outstripped and outflanked by technological developments.

Juncker has declared one of his Commission’s priorities to be the creation of a digital single market. He will not achieve that objective unless he manages a reform of EU copyright law.

The EU will not realise the potential growth of the digital economy unless it re-orders the management of rights to fit them to the internet age and to an EU of 28-plus member states. He will not achieve such copyright reform unless he takes on at least some entrenched vested interests.

Valour will not, however, be enough. Günther Oettinger and Andrus Ansip and their staff have to put together a proposal that is smart enough and robust enough to provide intellectual property protection in a 28-state union, even if the amount of protection is less than some rights-holders would like and probably less than (theoretically) at present.

Oettinger and Ansip must also be ready to defend their proposal against the distortions that are bound to arise during impassioned debate in the Parliament and the Council (Timmermans’ suspicion of the plastic bags proposal does provide at least a few parallels).

But just because the contest will be difficult does not mean that it can be avoided.

The last Commission funked the contest; the new Commission cannot. The initial requirement is a legislative proposal that is subtle enough to be worth fighting for, with both valour and discretion.